As the U.S. Supreme Court currently considers the issue of whether a private international arbitration constitutes a “foreign or international tribunal” within the meaning of 28 U.S.C. § 1782(a), the lower courts continue to receive applications for discovery assistance in international arbitration matters. Section 1782(a) authorizes U.S. district courts to provide assistance to foreign or international tribunals by ordering discovery of persons in the district.
On May 10, 2021, the United States District Court for the District of Columbia found that the Dubai International Finance Centre-London Court of International Arbitration (“DIFC-LCIA”) constitutes a “tribunal” within the meaning of Section 1782.
The D.C. Court held that DIFC-LCIA is a “foreign or international tribunal” within the meaning of Section 1782 because it is “sanctioned, regulated, and overseen by” the UAE government. See In re Application of: Food Delivery Holding 12 S.A.R.L., No. 1:21-MC-0005 (GMH), 2021 WL 1854343, at *5 (D.D.C. May 10, 2021). In other words, the Court determined that DIFC-LCIA is a “state-sponsored” tribunal, not a private arbitration forum. The Court relied on the Fourth Circuit’s decision in Servotronics, Inc. v. Rolls-Royce PLC et al., and found that:
The DIFC-LCIA is a joint venture of the Dubai International Financial Center and the London Court of International Arbitration. The DIFC itself was established by a United Arab Emirates decree. The Arbitration Institute, which is part of the DIFC, was created by statute, is funded by the Dubai government, and is governed by a board of trustees appointed by the Dispute Resolution Authority, one of the three “pillars” of the DIFC. The DIFC’s Arbitration Institute staffs the DIFC-LCIA, including legal counsel, casework managers and administrators, and office managers. Additionally, UAE courts have the authority under the UAE’s Federal Arbitration Law to appoint arbitrators, adjudicate arbitration issues, including jurisdictional determinations and procedural issues, and can assist in taking evidence and intervening to ensure the compliance of defiant parties. Like the arbitration in the Fourth Circuit’s Servotronics case, all of this suggests that the DIFC-LCIA in Dubai is “sanctioned, regulated, and overseen by” the UAE government…
The Court concluded that even under the narrow definition of Section 1782 that was adopted by several Circuit Courts, an international arbitration tribunal might be considered to be within the definition of the statute as long as such tribunal is “state-sponsored.” It did not reach the issue of whether section 1782 extends to private arbitrations because as a “state-sponsored” tribunal, the DIFC-LCIA can seek discovery assistance in federal court under Section 1782. It remains to be seen how the Supreme Court will decide this issue in Servotronics, Inc. v. Rolls-Royce PLC et al., Case No. 20-794.
 We previously discussed a decision in In re Application of: Food Delivery Holding 12 S.A.R.L., 1:21-mc-00005, 2021 WL 860262 (Mar. 8, 2021), in which Food Delivery Holding 12 S.a.r.l. (“FDH”) filed an application under 28 U.S.C. §1782 for an order to issue a subpoena for the taking of deposition and production of documents for use in a matter before the DIFC-LCIA.
In that decision, the D.C. Court noted that FDH’s application “stumbles just out of the gate” because it failed to acknowledge and to address “in any depth” the fact that the federal courts have reached different conclusions as to whether a private arbitration fits within Section 1782’s definition. However, the Court allowed the parties to submit supplemental briefings specifically addressing this issue.